Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)

Gurus, Do you know how are judges or AUSAs handling the unreasonable delay argument in the post memo world? Feel free to add recent example cases where feb 04, 2008 NC memo is being cited.

In other words, is it still a good idea to wait about 18 months or 24 months before going for WOM?

I'm losing hope on USCIS to process my case becuase of the memo and don't want to wait untill I reach the two years wait. So gathering info on if the memo is the new tool in the toolkit for WOM.
 
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the next SAFADI

The controversy continues...
The next safadi has been opined by George A. O'Toole of D.Mass.
hopefully soon some circuit court will help we womers..
 
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wom_ri said:
The controversy continues...
The next safadi has been opined by George A. O'Toole of D.Mass.
hopefully soon some circuit court will help we womers..
Click to expand...

Succar v. Ashcroft, 394 F.3d 8, 22 (1st Cir. 2005)
"The essence of the Attorney General's argument is that since he has been given ultimate discretion to deny adjustment of status after application, the validity of the regulation is itself not subject to judicial review, and, if it were, the regulation must be upheld as a permissible exercise of that ultimate discretion. We disagree on both points. We hold that there is no statutory bar to review and that the regulation is contrary to the language and intent of the statute, 8 U.S.C. § 1255(a). As a result, we vacate the order removing Wissam Succar from the United States and remand for further proceedings."

Prado v. Reno, 198 F.3d 286 (1st Cir. 1999)
"The language chosen by Congress in INA § 242(a)(2)(B) does not evidence an intent to eliminate this entirely rational, small safety valve -- court review that ensures that the agency at least considers new information, even if its ultimate and unreviewable judgment denies the relief sought. It may also be that Congress wished the agency to live by its rules. Congress may have desired court review to provide a minimal control on administrative arbitrariness such as where a motion to reopen is timely filed but the agency denies it on grounds of untimeliness. The space left open for judicial review is quite narrow, but it is not irrational for the window to be open a crack, if not wide open."

I want to ask O'Toole a question: "So, according your decision, the USCIS can just collect checks for AOS and do nothing without fearing judicial review?"
 
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I wonder why Feb 4 memo is not mentioned. Surely Plaintiffs if not defendants must have informed court of this. I would like to see how the judge responds to this change in his reasoning.
I guess Plaintiff got his GC and is not bothered with the case anymore.
Anyways, WOmers can argue that this judge did not incorporate the memo
into his reasoning :)
lazycis said:
...
I want to ask O'Toole a question: "So, according your decision, the USCIS can just collect checks for AOS and do nothing without fearing judicial review?"
Click to expand...
 
Is this judgement any good for Womers:
The "committed to agency discretion" exception is a "very narrow exception" that "is applicable in those rare instances where 'statutes are drawn in such broad terms [*8] that in a given case there is no law to apply.
 
wom_ri said:
Is this judgement any good for Womers:
The "committed to agency discretion" exception is a "very narrow exception" that "is applicable in those rare instances where 'statutes are drawn in such broad terms [*8] that in a given case there is no law to apply.
Click to expand...

I think it is good to destroy "unfettered discretion" arguments.

"The Supreme Court has explained that “review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” Chaney, 470 U.S. at 830.
 
retrogression arguments

Attached are retrogression arguments for those who are still fighting. The arguments are based, for the most part, on wom_ri amended complaint.
 
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Kennedy, schumer, leahy urge action on pending naturalization applications
"
In order to fully understand the scope of the USCIS backlog and front log problems, we request further information. Our specific requests are contained in the attachment.... It will be especially helpful to the Committee to have this information prior to your appearance before the Committee on April 2, 2008 and so we ask that you return the information by March 28, 2008.
"
I think they are are on the right track and lets send our letters/emails/phone calls to support them. While at it, I think we should also ask him to bring similar accountability to AOS backlogs.

http://boards.immigrationportal.com/showpost.php?p=1879812&postcount=640

Source: http://kennedy.senate.gov/newsroom/press_release.cfm?id=e6ac4fcb-c344-4b98-9b87-d79d648d8f7d
 
Arguments for post feb 4 memo(capricous policy of expediting namechecks)

An agency of the government must scrupulously observe rules, regulations, or procedures which it has established. When it fails to do so, its action cannot stand and courts will strike it down. This doctrine was announced in United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S. Ct. 499, 98 L. Ed. 681 (1954).
the Accardi doctrine has a broader sweep. The Supreme Court in Vitarelli v. Seaton, supra, applied it to a Department of [**9] the Interior "Order." The Second Circuit has applied it to the Army's "Weekly Bulletin 42," § 4(c) (Oct. 20, 1967). Smith v. Resor, 406 F.2d 141, 143-144 & n. 2, 146 (2 Cir. 1969). The District of Columbia Circuit has applied the doctrine to a FCC "rule" which had not been formally promulgated but which the court found had been established by the FCC's "usual practice" of including the rule in its orders. Sangamon Valley Television Corp. v. United States, 106 U.S.App.D.C. 30, 269 F.2d 221, 224-225 & nn. 8 & 9 (1959). See also McKay v. Wahlenmaier, 96 U.S. App. D.C. 313, 226 F.2d 35, 43 (D.C. Cir. 1955) (alternative holding). The same court has also applied the doctrine to FCC "Standards." American Broadcasting Co., Inc. v. FCC, 85 U.S.App.D.C. 343, 179 F.2d 437, 442-443 (1949). Finally, in United States ex rel. Brooks v. Clifford, 409 F.2d at 706, this court applied the doctrine to a Department of Defense "Directive."

These cases are consistent with the doctrine's purpose to prevent the arbitrariness which is inherently characteristic of an agency's violation of its own procedures. As the Second Circuit said [**10] in Hammond v. Lenfest, 398 F.2d at 715, cited with approval in United States ex rel. Brooks v. Clifford, 409 F.2d at 706, departures from an agency's procedures "cannot be reconciled with the fundamental principle that ours is a government of laws, not men."

To date, USCIS has not proferred any reasons for how and why they implemented the policy of expedite namecheck criteria. Furthermore important is why they did not defer to congressional mandate in requesting visa numbers in order of priority dates. It warranted that they expedite these checks for applicants stuck in namecheck if required or reverse the policy of requiring namechecks for adjudication much before Feb 4, 2008. It is quite apparant that significant legal resources have been expended by applicants and USCIS on this issue since 2005 and USCIS has to take this blame.
 
judge grants MTD

PIERRE MACHERET, Plaintiff, vs. MICHAEL CHERTOFF, et al., Defendants.
2:07-cv-00503-RCJ-RJJ
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA
2008 U.S. Dist. LEXIS 21753
March 19, 2008, Filed

This Court's jurisdiction depends upon the classification of Defendants' duty in adjudicating Plaintiff's I-485 application. If the duty is ministerial, this Court has jurisdiction; if the duty is discretionary, the Court lacks jurisdiction. Defendants argue that the Court lacks subject matter jurisdiction because the official duty at issue, adjudicating the I-485 application, is discretionary. Defendants are correct in characterizing its duty to adjudicate Plaintiff's I-485 application as discretionary. Therefore, the Court lacks jurisdiction.
 
N-400 1447(b)

Hi All:

I have a few questions to ask before submitting the Pro Se lawsuit. My case is pending for more than 2 yrs since I passed the test at interview.

1) A similar case filed by a lawyer actually did the both: 1447(b) and WOM.

The title of the lawsuit is "PETITION FOR HEARING AND COMPLAINT FOR WRIT OF MANDAMUS FOR STALLED NATURALIZATION APPPLICATION". So he quoted INA 336(b) and 8 USC 1447(b), 28USC 1331,1361 and 2201.
Also, the Administrative Procedures Acts, 5 USC 701

The slightly difference between this case and mine is that the plaintiff has never got any response from the USCIS since the interview. However, I got a second FP notice from USCIS last Nov.

Should I follow this example? Or simply just use the 8 USC 1447(b)?

2) The copy of the plaintiff’s permanent resident card is used as one of the Exhibits in this case.

I don’t think that this is proper because the Pro Se guide book actually states that one should never reveal the birth date or SSN on the lawsuit. If one have to, then one should file under court seal.

3) If I choose to do electronic filing, I have to pay the fee at a charge rate of 0.08 per page, correct? Otherwise, I have to use a typewriter to fill in the cover sheet and summons.

4) Does the lawsuit is going to negatively affect me in the future if I were to seek the government job?

Thanks very much for your help!
 
sweetapple,
1. Keep it simple. All you need to do is to show that 120 days has passed after the interview. Use 1447b. For 1447b, all the government can do is to argue that interview is just a part of examination. All circuit courts that considered the matter support your position: Hovsepian (9th), Etape (4th) and Walji (5th). Under 1447b you can ask court to naturalize you. Cannot do that using mandamus & APA.

2. No need to provide a copy of green card. How about I-485 approval notice?

3. ECF is free for you. You will not be charged for filing or looking at your case.

4. Who knows the future? Lawsuit is a public record, but I do not think you should worry about this stuff.
 
Arguments for lack of visa numbers

I am back to the discussion board. I filed WOM case in the October of 2005. Recently the court issued an order (see below). Defendants and I were asked to represent evidence to argue whether this court has jurisdication to resolve the case. The defendants put some serious arguments about the unavailability of visa numbers (see below). I did not know if anyone has a good idea on how to fight back. Thanks a lot.

Court's recent order
ORDER denying [34] Motion to Expedite; denying [44] Motion to Expedite; denying [8] Motion to Dismiss. All these motions are denied, without prejudice, in light of the representations in the Government's status report. Both sides are to file a memorandum by April 18, 2008, as to whether this Court has jurisdication to resolve this case in light of the remaining impediment of the issuance of a visa.

Defendants' arguments on lack of visa numbers
Pursuant to this Court’s order dated March 11, 2008, the defendants submit this status report regarding Plaintiff’s I-485 application. In sum, the final adjudication of the plaintiff’s adjustment application is not presently held up by security checks or any other review, but rather by the unavailability of visa numbers from the U.S. Department of State.

There has been progress on Plaintiff’s application since the last submission to this Court. As was set forth in Defendants’ motion to dismiss dated February 23, 2007, the FBI name check for Plaintiff had been completed. However, at that time, U.S. Citizenship and Immigration Service (“USCIS”) was reviewing information resulting from the security checks in order to evaluate Plaintiff’s eligibility for lawful permanent residence status.

Since then, the USCIS officers responsible for vetting the issues resulting from the results of the security checks have completed their examination. USCIS adjudications personnel are presently ready to adjudicate Plaintiff’s application for adjustment once a visa number. Once an immigrant petition has been approved, a visa may be obtained through an American
Consulate abroad. However, certain aliens, like Plaintiff, are eligible to “adjust status” in the U.S. without having to return to their home country. becomes available. However, at this time USCIS cannot adjudicate Plaintiff’s application for adjustment of status to lawful permanent resident (“LPR”) because there is no visa number presently available to him.
 
Hello,
I filed a pro se suit to expedite my green card application. I then agreed to a 60-day extension and then another 30-day extension, which ends today. As I understand it, there are now these options:
1. do nothing
2. ask for default judgment
3. ask for summary judgment
4. ask for discovery

All of these have pros and cons. Which is the most advisable route? I followed an earlier discussion which I've pasted below that suggests that discovery is the best way to go. But it could last a long time so I'm inclined to file an MSJ.

I'm in the Northern District of Georgia and the judge on my case is Pannell.

Thanks,
Chris


-----------
The procedure flow has been confusing to me, is it like below? Is it in correct or wrong order or missing any steps? assume no MTD is involved. Thank you!

1. file lawsuit ->
2. AUSA files Motion to Extend xx days (might be multiple extension) - if it seems endless, then ->
3. plaintiff files MSJ ->
4. court denies ->
5. plaintiff files Discovery ->
6. both plaintiff and AUSA file Joint Status Report ->
7. pretrial hearing ->
8. trial - if lost ->
9. appeal
-----------------
It's not that simple, some steps can be in a different order.

1. file lawsuit ->
2. plaintiff files Discovery request ->
3. AUSA files Motion to Extend xx days (might be multiple extension) - if it seems endless, then -> Do not agree to future extensions, file opposition.
4. AUSA files reply/MTD

... multiple scenarios
a) Judge orders JSR/conference -> file JSR report/attent conference
b) No JSR

5. plaintiff files MSJ ->
... multiple scenarios
a) court denies plaintiff's MSJ but assumes jurisdiction -> continue discovery, file subpoena
b) court grants plaintiff's MSJ -> victory
c) USCIS approves application -> victory
d) court dismisses complaint/denies MSJ again -> appeal


Results of discovery will help you to come up with the strong MSJ as they will prove (little doubt about it) that the delay is unreasonable. MSJ have to be based on undisputable facts so the results of discovery should be very helpful. It's important to start discovery as early as possible to speed up the resolution so that if AUSA files MTD you could reply with MSJ instead of just opposition. If AUSA files answer, you'll be able to skip JSR conferences and respond with MSJ instead of initiating discovery. It depends on AUSA cooperation, some may not be willing to respond to a discovery request until after an answer/MTD is filed. But it does not hurt to try, right?


With the search on PACER, I used mostly the same criteria, i.e., put Chertoff or Gonzales as last name in the party. You can try 540 as the nature of the lawsuit (540 is the mandamus), but I was looking mainly for naturalization cases based on 1447(b).

------------
 
Chrismartin76 said:
Hello,
I filed a pro se suit to expedite my green card application. I then agreed to a 60-day extension and then another 30-day extension, which ends today. As I understand it, there are now these options:
1. do nothing
2. ask for default judgment
3. ask for summary judgment
4. ask for discovery

All of these have pros and cons. Which is the most advisable route? I followed an earlier discussion which I've pasted below that suggests that discovery is the best way to go. But it could last a long time so I'm inclined to file an MSJ.

I'm in the Northern District of Georgia and the judge on my case is Pannell.

Thanks,
Chris
Click to expand...

File MSJ. According to other member's experience, discovery may not produce anything useful and can be just a waste of time. Responding to MSJ, government has to show that the delay is reasonable (and they cannot, especially in light of Feb 4 memo). For you, it's enough to cite 8 USC 1571-1573 and refer to current processing times on the USCIS web site. Attach Feb 4th memo as well.
 
lazycis said:
File MSJ. According to other member's experience, discovery may not produce anything useful and can be just a waste of time. Responding to MSJ, government has to show that the delay is reasonable (and they cannot, especially in light of Feb 4 memo). For you, it's enough to cite 8 USC 1571-1573 and refer to current processing times on the USCIS web site. Attach Feb 4th memo as well.
Click to expand...

Thanks, lazycis. I updated the wikibook with some information on responses that one should consider if the case is prolonged. I placed the update at the end of section 4.2 in the wikibook. Could you append to or revise this update with any information you may have so it's permanently stored there? Thanks.

http://en.wikibooks.org/wiki/FBI_name_check#Lawsuit_steps

-Chris
 
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